Calcutta High Court (Appellete Side)
Bulu Bag & Ors vs State Of West Bengal on 18 January, 2023
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
Sl No. 1
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Present:
The Hon'ble Justice Joymalya Bagchi
The Hon'ble Justice Ananya Bandyopadhyay
C.R.A. 25 of 2016
Bulu Bag & Ors.
-Vs-
State of West Bengal
For the Appellant: Md. Sabir Ahmed
Mr. Abdur Rakib
For the State : Mr. Saswata Gopal Mukherjee , Ld. Public
Prosecutor
Mr. Parthapratim Das
Mrs. Manasi Roy
Heard on : 18.08.2022
Judgment on : 18.01.2023
Ananya Bandyopadhyay, J.:-
1.The appeal is preferred against the judgment and order of conviction dated 30.11.2015 passed by the Additional Sessions Judge, FTC-1, Tamluk in Sessions Trial No. 3(5) of 2013 arising out of Sessions Case No. 160(3) 2013 convicting the appellants under Section 302 of the Indian Penal Code and sentencing them 2 to suffer life imprisonment for commission of offence punishable under Section 302 of IPC.
2. The prosecution case emanated from a complaint dated 24.11.2012 wherein the complainant Sambhu Maity's daughter deceased victim Asima Maity (Bag) @ Manasi was married to Mithun Bag son of Nilkanta Bag village of Gourangapur within the jurisdiction of Tamluk Police Station about one and half years ago out of an affair between them. His daughter continued with her conjugal life at the matrimonial house with her husband Mithun Bag who along with his father and mother aspersed the character of his daughter abusing and assaulting her with further threat to murder her. The complainant used to persuade her daughter to continue with her married life disregarding the aforesaid incident and also the enticement of her father-in-law since he wanted her to lead a happy married life. On 24.11.2012 at 4.30 A.M. relatives of his daughter's father-in-law informed him over phone that his daughter was burnt. The complainant along with his wife and other relatives reached the matrimonial house of his daughter at about 6.30 a.m and found her burnt body lying on her belly in front of the stair case of the verandah. He found spot of blood stain on the floor. His daughter's tongue was placed out and she was burnt completely from her head to foot sole, roasted and shrunk. The 3 attic of the house smelled of kerosene of certain burnt things. He came to know from the local people at about 11/11.30 p.m the night before they heard a clamour. At about 3.30 a.m to 4.00 a.m the attic of the house was seen to be set on fire. The dead body of his daughter was found in the aforesaid condition after the fire was extinguished. The complainant strongly believed that the husband, father-in-law and mother-in-law of her daughter conspired and murdered her through strangulation and, thereafter, in order to suppress the incident and to hide the evidence set her on fire by pouring kerosene oil on her body at the attic and further prayed for appropriate steps to punish the murderers of his daughter.
3. Based on the written complaint case No. 599/2012 dated 24.11.2012 under Section 498A/302/201/34 IPC was instituted against the appellants. The formal FIR was registered against the appellants i.e. Mithun Bag, Nilkanta Bag and Bulu Bag and the investigation ended in submission of charge-sheet No. 44/2013 dated 12.12.2013 under Section 498A/302/201/34 of the Indian Penal Code.
4. The prosecution in order to establish its case cited 26 witnesses and exhibited certain documents.
5. The Learned Advocate for the appellants submitted the incident was not seen by anyone whereby the victim lady was 4 murdered by the appellants. It had been alleged the incident took place at the garret. However, the dead body of the victim lady was found at the stair case as stated by the witnesses. The place of occurrence was not established, since the attic was found to be burnt. The prosecution relied on the extra judicial confession of the accused which was inadmissible in law and the instant case based on circumstantial evidences failed to create the chain of circumstances. The defence of the appellants was not considered by the learned trial judge. The prosecution failed to establish the ingredients to constitute an offence under Section 302 of the Indian Penal Code.
6. The Learned Advocate for the appellants submitted that the evidence of P.W.16 revealed the nature of the incident to be accidental. He had stated that victim wife of the appellant Mithun Bag led a peaceful life in her matrimonial house. He further argued that P.W.14 had deposed he could not recollect whether P.W.1 had stated to him about an electric short circuit in the attic. None of the prosecution witnesses was present at the place of occurrence. The evidence revealed cordial relationship between the parties on visiting terms. The relatives of the victim did not lodge any complaint of torture and assault earlier. The prosecution failed miserably to establish its case and accordingly the present appeal shall be allowed.
5
7. Learned Advocate for the State submitted the appellants were present at the house at the time when the flames were visible from the garret at about 3/ 4 a.m on the relevant day. Appellants had carried the dead body from the attic through the stair case on to the ground floor. The dead body on its own could not move and it was displaced from the attic to the ground floor. The flames released from the ceiling of the garret meant that the victim was burnt at the attic. In order to save herself she fell down. From the medical report it appeared there was fracture in the cartilage of the larynx of the dead body along with echynosis and hemorrhage which was ante-mortem in nature. The death was due to the strangulation followed by the blazing of the body. He further submits that theoretical opinion is immaterial and entire facts are required to be taken into consideration. The trial court did not rely on Bulu's confession in front of the police and considered the entire incident creating a link in the chain of circumstances. Accordingly, the prosecution was successful in establishing its case and the appeal shall be dismissed.
8. P.W.1 Sambhu Maity the father of the victim inter alia, stated after the initial two years of happy married life, her daughter on her second visit informed of being tortured by her husband over her affair with another person. The father in law tried to enter into an illicit relationship with her and the mother-in-law 6 inflicted torture for demand of dowry and threatened her not to disclose such torture to anybody. P.W.1 suggested his daughter to bear the torture. On 24.11.2012 P.W.1 at about 4.30 am. PW 1 was informed over telephone by one of the neighbour of the appellants about his daughter's burn injuries. P.W.1 along with his wife and nephew reached the matrimonial house of his daughter at about 6.00 to 6.30 a.m and found the dead body of his daughter lying near the stair case of the verandah in a prostrated position with protruding tongue with blood oozing from her mouth without any hair on her head. Her wearing apparels were burnt. He also noticed blood and wearing apparels lying on the stair case. He further noticed 2/3 empty bottles with smell of kerosene and one lamp on the garret, the ceiling of which was burnt. P.W.1 was informed of an altercation the previous night between the appellants and the victim. P.W.1 presumed that his daughter was killed by strangulation and thereafter burnt by pouring kerosene oil. A complaint lodged at Tamluk P.S. was marked as Ext.1, his signature on the seizure list was marked as Ext. 2/1.
9. During his cross-examination P.W.1 inter alia stated the appellant Mithun Bag never came to their house after the marriage. The appellant Nilkanta Bag went to their house for about 8 to 9 times and appellant Bulu Bag went to their house 7 with his daughter once. Appellant Mithun Bag used to stay at Kolkata due to employment in a hosiery factory. P.W.1 had been to the matrimonial house of his daughter thrice. He further stated there was cordial relationship between them and the appellants. Initially, he discussed the matter amongst themselves and reported the same to the panchayat member and, thereafter, informed the police on the same day at 4 P.M. Certain local inhabitants and the panchayat member along with P.W.1 went to the police station at about 6.30 to 7 pm. on 24.11.2012 thereafter the dead body of his deceased daughter was sent to the District hospital for post mortem.
10. P.W.2 Padmalochan Bag inter alia stated about 3.50 to 3.55 a.m on the relevant date he heard the appellant Mithun shout "Ami pure gechi ami pure gachi". Arriving at the spot he saw the wife of Mithun Bag lying dead by the side of the grill of the house of Mithun. He found blood oozing out to the mouth of the victim. The whole body was wrapped by a saree with her hands lying out. P.W.2 became suspicious, perhaps the wife of Mithun was killed and then the body was ablazed after taking the same to the garret. The burnt ceiling of the garret was tried to be extinguished by two females. PW 2 found a bottle of kerosene oil at the garret. PW 2 told the police, appellant Bulu Bag was a lady of ill character who admitted that she and other two appellants 8 killed Manasi. At the time of her confession before police, he was present with one Jayanta Maity. His statement was recorded under Section 164 Cr.P.C.
11. P.W. 3 Godadhar Bera inter alia stated on 23.11.2012 at about 4 a.m he heard the appellants to shout from their house and found fire on the garret of their house. He found the house of Nilkanta Bag in total darkness. When the light was put on he found the dead body of the Manasi lying just below the stair case with blood oozing from her mouth. Her entire body was burnt. He went to the garret of the house to put off the fire and found one bottle of kerosene oil. He did not know the cause of the death. His statement was recorded under Section 164 Cr.P.C.
12. PW 5 Chandana Maity stated his daughter Asima did not lead a peaceful matrimonial life being tortured by her parents-in- law and husband. The father-in-law tried to entice her and her husband aspersed her of immoral character. His daughter was initially strangulated to death by the appellants who, thereafter, ablazed her body through kerosene oil. She found the deadbody of her daughter near the staircase of her matrimonial house with blood in her mouth and protruded tongue. She heard that her daughter was taken to the Garrett of the house by the appellants who set her on fire thereafter. She smelled kerosene oil on the wearing apparel of her deceased daughter. She stated of a 9 dispute in the family of her daughter at about 11/11.30 pm, which was informed to them at about 4/4.30 am on the next date.
13. During her cross examination PW 5 inter alia stated to have visited the matrimonial house of the victim on several occasions. The appellant Mithun never visited the house of PW 5 after marriage though his parents visited her house. After marriage the appellant Mithun stayed out of West Bengal for eight months and, thereafter, returned. She did not disclose to anybody of the torture inflicted by the appellants on her daughter.
14. PW 6 Shri Soumitra Mukherjee took 17 photographs of the deceased in the house where her deadbody was lying which were marked as Ext. 6 series.
15. PW 10 Sk Ansar Ali, a law clerk by profession was the scribe of the complaint dated 24.11.2012 dictated by Sambhu Maity.
16. PW 11 Shib Charan Singh the Assistant Sub Inspector of Police conducted the inquest of the deceased at the house of the appellants and prepared the inquest report in presence of the witnesses.
17. PW 12 Biswanath Maity, the brother of Sambhunath Maity stated to have heard about a dispute between the deceased and the appellants but the reason was unknown to him. He had seen the deadbody of his niece at the house of the appellants with 10 protruded tongue and blood oozing from her mouth. On the garret of the house he found a burnt ceiling and a bladder of kerosene. He heard from the neighbours of a dispute the previous night for which Manasi was killed by the appellants since there was no good relationship amongst them. He found the mother-in-law, the deceased at the house.
18. PW 13 Dr. Tridibesh Banerjee conducted the post mortem examination of the deceased Manasi Bag and found the following:
"The portion of tongue of mouth cavity was not burnt and healthy. There was no line of redness. Whole body was burnt except supra pubic region. I found the burnt skin of both cell came out. Scalp hair was burnt excepting occipital region. I found vulva superficial burnt. There was no injury marked on neck and other parts of fore arm, wrist as the skin was burnt both dermis and epidermis. There was sign of vesication or bullae formation. The skin was hard, dry and yellow instead of being redden and inflamed. There was no evidence of vital reaction.
1. Line of redness not present on the junction of burnt area and healthy area at supra pubic region.
2. No vesication or bullae formation of fluid inside was noted.
3. No vital sign of reparative process was seen but have a dull white coloured opening of the skin glands colour grey that is postmortem burnt.
I did not find any ligature mark. No linean of cresentic mark was seen at the neck as the skin was burnt, echymosis and hemorrhage were seen on the straff muscle of neck of both 11 side. Scalp was burnt except occipital region. The brain and spinal chord were found congested. No rib was found fractured. Pleurae was found congested. Lyrynx and trachoea were found congested and contained frothy mucus. Two upper rings of trachoea were fractured with hemorrhage seen. Right cornu of hyoid bone was found fractured with are of hemorrhage seen.
Cartilages of lyrynx were found fractured with hemorrhagic mark. No black shoot was found present in lyrynx and trachoea. Right lungs and left lungs both were found congested and patchel hemorrhage was seen at places.
Emphysematous bullae was seen on the right lung. No black shoot was present on both lungs. Heart right was full and left was empty. No black shoot was present in protruded portion of the tongue which was burnt. I found forth and sanguineous mucus inside of the oral cavity. Other part of viscera was congested.
External genetelia was found superficial burnt. Uterus normal in size and introverted. Stool at anus and anal region was found present. In my opinion the cause of death was asphyxia due to throttling which was anti mortem in nature and homicidal. The burnt was postmortem in nature. This is that postmortem report as prepared by me in the same mechanical process. It bears my seal and signature (Postmortem report with seal and signature is marked as Ext.
10)."
19. During his cross-examination he stated that, "I agree with the medical opinion that the body of a victim died due to thermal burn and continues to remain exposed to 12 flame and intense heat, some of the antemortem burns covering the body of such a victim may exhibit the appearance of post mortem burns.
Fracture may develop in the neck bone due to the extensive heat but it would make the bone only fragile. Then witness volunteers:- In the case the fractures found on the cartilage of the Lyrynx of the dead body was not fragile but it was fractured.
It may be that the fracture injury found on the dead body of the victim by me can be caused due to the extensive heat.
I am agree with the medical opinion that echynosis and hemorrhage found by me at the time of post mortem examination of the dead body could be caused due to the antemortem burn injury.
In case of antemortem burn the color of the blood turns from red to black.
I did not take note of the color of blood of the deceased in my post mortem examination report.
In case of throttling there is no scope of any hemorrhage. I agree with the medical opinion that carbon particles in body of the victim of ante burn injury is not found on all occasion.
In case of death due to the antemortem burn injury if the death is caused in short span there is chance that no carbon particles inside the dead body could be found."
20. PW 14 Soumen Maity the nephew of PW 1 Sambhu Maity inter alia stated that on 24.11.2012 PW 1 had asked him to go to the matrimonial house of Manasi as a fire broke out from electric short circuit. Along with PW 1 and PW 5 he went to the matrimonial house of the victim and found her deadbody near 13 the entrance door with protruded tongue and blood oozing from her person. The garret of the house was burnt and a cap of 5 liter drum with smell of kerosene was found along with burnt cloths and a plastic jar. A local person informed them of a quarrel the previous night. He believed that the appellants killed Manasi by throttling her and burnt her body to hide the evidence.
21. PW 15 Ardhendu Maity the nephew of PW 1 stated to have accompanied PW 1, PW 5, PW 14 to the matrimonial house of the deceased along with two of his friends namely Sukdeb and Swapan. He also narrated to have seen the body of the deceased lying in similar position as that of PW 14.
22. PW 16 Niranjan Bag the brother of appellant Nilkanta Bag stated on entering the house of the appellants he found the wife of Mithun lying dead with smell of kerosene all over her body. The local people took the appellant Nilakanta and Mithun to the hospital for the treatment for burn injuries on their person. He stated after marriage wife of Mithun lead a peaceful life in her matrimonial house.
23. PW 22 Haripada Dalui recorded the conversation between the Investigating Officer and appellant Bulu Bag through videography and prepared the CD of the said conversation 14 through videography and the said CD was identified and marked as MAT Ext. VII.
24. PW 23 Pushpa Rani Bera stated to have seen a fire to break out in the garret of the house of Nilkanta Bag at 4 am and along with her husband Gobardhan Bera went to the house of the appellant with a bucket. They found the deadbody of Manasi in front of main door of their house. She went to the garret of the house and extinguished the fire throwing water. She could smell kerosene oil in the room and found one napkin tied in the legs of Manasi with blood oozing from her mouth and her body totally burnt. Her statement was recorded under Section 164 of the Cr.P.C.
25. PW 24 Prattay Chowdhury the Judicial Magistrate had recorded the statement of Padmalochan Bag, Gadadhar Bera and Pushparani Bera under Section 164 Cr.P.C.
26. PW 25 S.I Arun Kumar Khan drew the formal FIR being Tamluk PS case No. 599/12 dated 24.11.2012 under Section 498 A/ 302/201/34 of the IPC against the appellants marked Ext. 12. He had endorsed the case to SI Maniklal Adak for investigation and the endorsement was marked as Ext. 1/2.
27. PW 26 S.I. Maniklal Adak the Investigating Officer prepared the rough sketch map with index of the place of occurrence marked as Ext. 13 examined the complainant and other 15 prosecution witnesses on 24.11.2012 and recorded their statement under Section 161 of Cr.P.C. obtained the photographs of the place of occurrence through Soumitra Mukherjee and arrested the appellant Bulu Bag on 25.11.2012 at about 6.05 am from the place of occurrence. He prepared a seizure list in presence of the witness marked Ext. 2 regarding seizure of 650 mililitre phial of kerosene, one melted plastic container, ash of burnt clothings, one lead of container of 5 litre with smell of Kerosene oil. He further stated to have obtained the police custody of Bulu Bag on 25.11.2012 who confessed that her husband caught hold of the legs of the deceased and appellant Mithun caught hold of the hands of the deceased and she throttled her till death in her bedroom. Thereafter, they became perplexed and decided to ablaze the deadbody. Appellant Nilkanta and Mithun transferred the deadbody to the garret of the house poured kerosene oil and ablazed the deadbody and in order to demolish the evidence brought the deadbody to the ground floor to the staircase. At about 3 to 3.30 am three of them cried aloud. Thereafter, local people entered their house and found the deadbody lying on the ground. Statements of Padmalochan Bag, Gadadhar Bag and Pushparani Bera were recorded under Section 164 of the Cr.P.C. and their statements were collected from the Court. The post mortem report of the 16 deceased was collected on 14.12.2012 of the District Hospital, Purba Medinipur. The appellant Mithun Bag and Nilkanta Bag were arrested from the hospital on 19.12.2012. PW 26 seized the wearing apparels of the deceased under a seizure list marked Ext. 5 and the photographs were seized under a seizure list marked Ext. 7. He sent the seizure articles to FSL Kolkata on 26.12.2012 and collected the report on 21.01.2013 marked Ext. 14. PW 26 collected the CD of the statement of Bulu Bag in Police custody. The report from FSL Kolkata regarding the seized articles sent for chemical examination was marked as Ext. 15. He submitted the chargesheet against the appellants under Section 498 A/302/201/34 IPC being CS No. 44/13 dated 12.12.2013.
28. PW 1, PW 5, PW 12, PW 14, PW 15, PW 16 were the related witnesses of the victim and at variance to the others PW 16 Niranjan Bag stated the victim led a peaceful matrimonial life with appellant No. 1. PW 1 and PW 5 the parents of the victim being aware of the torture inflicted upon their daughter did not take any steps to redress the same. The evidence of PW 1 and PW 5 revealed their regular visits to the matrimonial house of their daughter, signifying cordiality. Apart from general allegations they did not specify any particular incident of resentment. The related witnesses except PW 16 as aforesaid testified of having heard a commotion of disputation between the 17 deceased and the appellants from the neighbours without naming them. PW 2, PW 3 and PW 23 in their statements recorded under Section 164 of the Cr.P.C. did not inculpate the appellants. PW 3 and PW 23 being the husband and wife respectively tried to extinguish the fire on garret. They saw the deadbody of the victim lying at the staircase entirely burnt with blood oozing from her mouth. PW 1, however, deposed to have been suspicious of the victim being killed by the appellants at the first instance who thereafter, ablazed her body at the garret. PW 1 stated after seeing the deadbody of his daughter he presumed she was killed by strangulation and thereafter her body was burnt by pouring kerosene oil. PW 1 furhter stated "perhaps my daughter was killed due to non fulfillment of demand or with the allegation of her ill character." PW 2 deposed to have been suspicious after observing the deadbody. It appeared to him perhaps the wife of Mithun was killed and then the body was ablazed after taking the same to the garret. PW3 Godadhar Bera was ignorant of the cause of the death of the victim. The evidence of PW 5, PW12 and PW 14 was based on hearsay. PW 26 the Investigating Officer stated there was no eye-witness to the murder of the victim. In absence of direct evidence the evidence of the prosecution is circumstantial in nature. 18
29. In the case of Rajiv Singh vs. State of Bihar & another1, the Hon'ble Supreme Court observed that, "67. The evidence adduced by the prosecution dominantly is circumstantial in nature with no direct proof of the perpetration of the alleged offence by the appellant. It is a trite proposition, judicially evolved, that circumstantial evidence if is to form the basis of conviction must be such so as to rule out every possible hypothesis of innocence of the accused and must without any element of doubt unerringly point to such culpability. This enunciation has stood the test of time over the years and the five golden principles propounded by this Court in Sharad Birdhichand Sarda vs. State of Maharashtra (1984) 4 SCC 116 (paragraph 153) which still authoritatively govern the process of appreciation of the circumstantial evidence and constitute the acid test to determine the guilt or innocence of an accused person, are quoted hereunder:
"153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be" established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra where the following observations were made: (SCC p. 807, para 19) "19. ... Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between „may be‟ and „must be‟ is long and divides vague conjectures from sure conclusions." (emphasis in original) (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused." The theory of "last seen together" as an incriminating factor qua the appellant is, 1 (2015) SCC Online SC 1336 19 thus of no avail to the prosecution having regard to the state of evidence on record."
30. In the case of the State of Odisha vs. Banabihari Mohapatra and Anr. , the Hon'ble Supreme Court observed that, "38. It is well settled by a plethora of judicial pronouncement of this Court that suspicion, however strong cannot take the place of proof. An accused is presumed to be innocent unless proved guilty beyond reasonable doubt. This proposition has been reiterated in Sujit Biswas v. State of Assam reported in AIR 2013 SC 3817.
39. In Kali Ram v. State of Himachal Pradesh reported in AIR 1973 SC 2773, this Court observed:-
"Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases where in the guilt of the accused is sought is to be established by circumstantial evidence."
31. In the case of Ram Niwas vs. State of Haryana,2 the Hon'ble Supreme Court observed that, "19. This Court has held that there has to be a chain of evidence so complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. It has been held that the circumstances should be of a conclusive nature and tendency. This Court has held that the circumstances should exclude every possible hypothesis except the one to be proved. It has been held that the accused „must be‟ and not merely „may be‟ guilty before a Court can convict.
2 2022 LiveLaw (SC) 670 20
20. It is settled law that the suspicion, however strong it may be, cannot take the place of proof beyond reasonable doubt. An accused cannot be convicted on the ground of suspicion, no matter how strong it is. An accused is presumed to be innocent unless proved guilty beyond a reasonable doubt."
32. The evidence based on hearsay, presumption, suspicion and supposition in order to be relied upon, must be augmented and fortified by credible evidence led by the prosecution. The evidence based upon probabilities, conjecture and surmise cannot be accepted in indicting any person where instead of one conclusive probability there can other possibilities. In the instant case direct evidence is absent. Clarity and decisiveness in the evidence of the related witnesses are non-existent. FSL report marked as Ext. 15 eradicates the possibility of violence at the attic as well as the ground floor room. PW 14 in his evidence stated to have been asked to reach the matrimonial house of the victim as a fire broke out from electric short circuit. The inconsistencies in the prosecution evidence implies more than one probability and specific inference leading to an exclusively singular cause of death cannot be reasoned.
33. PW 13 Dr. Tridibesh Banerjee described the nature of the injuries detected by him on postmortem examination of the victim. PW 13 opined the cause of death was asphyxia due to 21 throttling which was ante mortem in nature and homicidal. During his cross examination he stated, "I agree with the medical opinion that the body of a victim died due to thermal burn and continues to remain exposed to flame and intense heat, some of the antemortem burns covering the body of such a victim may exhibit the appearance of post mortem burns.
Fracture may develop in the neck bone due to the extensive heat but it would make the bone only fragile. Then witness volunteers:- In the case the fractures found on the cartilage of the Lyrynx of the dead body was not fragile but it was fractured.
It may be that the fracture injury found on the dead body of the victim by me can be caused due to the extensive heat.
I am agree with the medical opinion that echynosis and hemorrhage found by me at the time of post mortem examination of the dead body could be caused due to the antemortem burn injury.
In case of antemortem burn the color of the blood turns from red to black.
I did not take note of the color of blood of the deceased in my post mortem examination report.
In case of throttling there is no scope of any hemorrhage. I agree with the medical opinion that carbon particles in body of the victim of ante burn injury is not found on all occasion.
In case of death due to the antemortem burn injury if the death is caused in short span there is chance that no carbon particles inside the dead body could be found."
34. In R v. Ahmed ali 11 WR Cr. 25 while expressing view on medical evidence it has been observed as follows: 22
"The evidence of a medical man or other skilled witnesses, however, eminent, as to what he thinks may or may not have taken place under particular combination of circumstances, however, confidently, he may speak, is ordinarily a matter of mere opinion."
35. In the case of Madan Gopal Kakkad vs. Naval Dubey and Anr. 3 the Hon'ble Supreme Court observed that, "A medical witness called in as an expert to assist the Court is not a witness of fact and the evidence given by the medical officer is really of an advisory character given on the basis of the symptoms found on examination. The expert witness is expected to put before the Court all materials inclusive of the data which induced him to come to the conclusion and enlighten the Court on the technical aspect of the case by explaining the terms of science so that the Court although, not an expert may form its own judgment on those materials after giving due regard to the expert's opinion because once the expert's opinion is accepted, it is not the opinion of the medical officer but of the Court."
36. The contradiction detected in the opinion of PW 13 in his examination-in-chief and cross-examination regarding the post mortem examination of the dead body of the victim instead of assisting the Court confounds it. The opinion of PW 13 defining reasons which caused the death of the victim are dichotomous and baffling, accordingly cannot be relied upon. It will be difficult and improper for the Court to inculpate the appellants on the basis of such indistinct and obfuscated opinion. 3 (1992) 3 SCC 204 23
37. The uncorroborated extra judicial confession of the appellant Bulu Bag before police is inadmissible in law and devoid of probity is unsustainable.
38. The Ld. Trial Court has criticized and discredited the act of the appellant Mithun Bag during his examination under Section 313 Cr.P.C. rendering the same to be disbelieved and indicted him. The Ld. Trial Court believed the appellant to have concealed his presence at the place of occurrence and belied before it, disregarding the burn injuries sustained by the said appellant on the relevant day with subsequent hospitalization and arrest therefrom.
39. In Dharnidhar v. State of U.P. & Ors4., , the Hon'ble Supreme Court held:
"The proper methodology to be adopted by the Court while recording the statement of the accused under Section 313 CrPC is to invite the attention of the accused to the circumstances and substantial evidence in relation to the offence, for which he has been charged and invite his explanation. In other words, it provides an opportunity to an accused to state before the court as to what is the truth and what is his defence, in accordance with law. It was for the accused to avail that opportunity and if he fails to do so then it is for the court to examine the case of the prosecution on its evidence with reference to the statement made by the accused under Section 313 CrPC."
40. In Mohan Singh v. Prem Singh & Anr5., the Hon'ble Supreme Court held:
24
"The statement of the accused under Section 313 CrPC is not a substantive piece of evidence. It can be used for appreciating evidence led by the prosecution to accept or reject it. It is, however, not a substitute for the evidence of the prosecution. If the exculpatory part of his statement is found to be false and the evidence led by the prosecution is reliable, the inculpatory part of his statement can be taken aid of to lend assurance to the evidence of the prosecution. If the prosecution evidence does not inspire confidence to sustain the conviction of the accused, the inculpatory part of his statement under Section 313 CrPC cannot be made the sole basis of his conviction."
41. The Ld. Trial Court observed that "accused persons have failed to show as to how the death of the deceased Manasi took place. In absence of sufficient or cogent explanations in that behalf the Court would be entitled to consider the same as circumstances against the accused persons." The Ld. Trial Court was substantially of the view that it was incumbent on the part of the appellants to provide plausible explanation to the murder of the victim since the appellants had the best knowledge about the occurrence of the same in view of the provision enumerated in Section 106 of the Indian Evidence Act and having failed to comply the same were inculpated.
42. In Shambu Nath Mehra v. State of Ajmer6, the Hon'ble Supreme Court had aptly explained the scope of Section 106 of the Evidence Act in criminal Trial. It was held in Para 11. 4 (2010) 7 SCC 759 5 AIR 2002 SC 3582 6 AIR 1956 SC 404 25 "11.This lays down the general rule that in a criminal case the burden of proof is on the prosecution and section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word "especially" stresses that. It means facts that are preeminently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not. It is evident that cannot be the intention and the Privy Council has twice refused to construe this section, as reproduced in certain other Acts outside India, to mean that the burden lies on an accused person to show that be did not commit the crime for which he is tried. These cases are Attygalle v. Emperor(1) and Seneviratne v. R. (2)."
43. In Md. Anowar Hussain v. State of Assam 7the Hon'ble Supreme Court observed that, In the case of Shivaji Chintappa Patil (supra), this Court reiterated the principles that Section 106 of the Evidence Act does not absolve the prosecution of discharging the primary burden; and that want of explanation or falsity of explanation in the statement under Section 313 can only be used as an additional circumstance when the prosecution has proved the other circumstances leading to no other conclusion but that of guilt of the accused. In that case, one of the significant features had been that as per the post- mortem report, the cause of death of the victim was asphyxia due to hanging but, admittedly, there were no marks on the body of the victim which could suggest violence or struggle; and the medical expert himself had not ruled out the possibility of suicidal death. This Court observed and said as under:--
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2022 SCC OnLine SC 1399 26 "22. ...Section 106 of the Evidence Act does not absolve the prosecution of discharging its primary burden of proving the prosecution case beyond reasonable doubt. It is only when the prosecution has led evidence which, if believed, will sustain a conviction, or which makes out a prima facie case, that the question arises of considering facts of which the burden of proof would lie upon the accused.
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24. Another circumstance relied upon by the prosecution is, that the appellant failed to give any explanation in his statement under Section 313 Cr.P.C. By now it is well-settled principle of law, that false explanation or non-explanation can only be used as an additional circumstance, when the prosecution has proved the chain of circumstances leading to no other conclusion than the guilt of the accused. However, it cannot be used as a link to complete the chain. Reference in this respect could be made to the judgment of this Court in Sharad Birdhichand Sarda (supra)."
65. In Satye Singh (supra), where the prosecution failed to prove the basic facts as against the accused, this Court, again, emphasized that Section 106 of the Evidence Act does not relieve the prosecution of its primary duty to prove the guilt of the appellant as follows:--
"15. ...the Court is of the opinion that the prosecution had miserably failed to prove the entire chain of circumstances which would unerringly conclude that alleged act was committed by the accused only and none else. Reliance placed by learned advocate Mr. Mishra for the State on Section 106 of the Evidence Act is also misplaced, inasmuch as Section 106 is not intended to relieve the prosecution from discharging its duty to prove the guilt of the accused...."
66. In the case of Nagendra Sah (supra), the relevant background aspects were that the appellant's wife died due to burn injuries on 18.11.2011 whereupon, Unnatural Death Case was registered. According to the post-mortem report, the cause of death was asphyxia due to pressure around neck by hand and blunt substance. Later, as late as on 25.08.2012, the FIR was registered for the offence under Section 302 IPC and ultimately, the appellant was tried and convicted of the offences under Sections 302 and 201 IPC. This Court, however, noticed the factors that there was no explanation by the prosecution for the inordinate delay in registering the FIR; that none except the official witnesses 27 supported the prosecution case; that there was no evidence to suggest that the relationship between the appellant and the deceased was strained in any manner; and that the appellant was not the only person residing in the house where the incident took place.
This Court, thus, held that the facts established were not consistent with only one hypothesis of the guilt of the appellant. In such a background, this Court observed that conviction could not have been based only on the post-mortem report; and when the prosecution failed to establish the chain of circumstances, the failure of the accused to discharge the burden of Section 106 of the Evidence Act was not relevant at all. This Court and observed and held as under:
"22. Thus, Section 106 of the Evidence Act will apply to those cases where the prosecution has succeeded in establishing the facts from which a reasonable inference can be drawn regarding the existence of certain other facts which are within the special knowledge of the accused. When the accused fails to offer proper explanation about the existence of said other facts, the court can always draw an appropriate inference.
23. When a case is resting on circumstantial evidence, if the accused fails to offer a reasonable explanation in discharge of burden placed on him by virtue of Section 106 of the Evidence Act, such a failure may provide an additional link to the chain of circumstances. In a case governed by circumstantial evidence, if the chain of circumstances which is required to be established by the prosecution is not established, the failure of the accused to discharge the burden under Section 106 of the Evidence Act is not relevant at all. When the chain is not complete, falsity of the defence is no ground to convict the accused.
44. In view of the discussions and observations of the Hon'ble Supreme Court cited above, the prosecution case based on suspicion, incoherent medical evidence, faulty in creating a chain to establish circumstantial evidence cannot be relied upon. The offence to have been committed in the secrecy of the house does not prove the appellants' to be guilty in case of their failure to explain any of the circumstances where the prosecution has not 28 succeeded in proving its case, since the initial burden lay on the prosecution to prove its case.
45. The appeal is accordingly, allowed.
46. The appellants shall be released from custody, if not wanted in any other case, upon execution of a bond to the satisfaction of the trial Court which shall remain in force for a period of six months in terms of Section 437A of the Code of Criminal Procedure.
47. Lower court records along with copies of this judgment be sent down at once to the learned trial court.
48. Photostat certified copy of this order, if applied for, be given to the parties on priority basis on compliance of all formalities.
I agree.
(Joymalya Bagchi, J.) (Ananya Bandyopadhyay, J.) 29